SCOTUS Strikes Down Texas Abortion Restrictions

Cites 'undue burden' on women seeking abortions

WASHINGTON — The Supreme Court on Monday struck down abortion restrictions in Texas that required physicians performing abortions to have admitting privileges at a local hospital and that required abortion clinics to meet standards for ambulatory surgical centers, saying the requirements pose an “undue burden” and a “substantial obstacle” for women seeking abortions in the state.

“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” the court wrote in a 5-3 decision. “Each places a substantial obstacle in the path of women seeking a pre-viability abortion, each constitutes an undue burden on abortion access … and each violates the Federal Constitution.”

The court’s decision could affect other states as well — currently, 24 states have laws on the books requiring abortion clinics to meet surgical center standards, and 11 clinics have laws requiring physicians providing abortions to have hospital admitting privileges, according to the Kaiser Family Foundation.

The case, known as Whole Woman’s Health et al. v. Hellerstedt, was brought in 2014 by a group of abortion providers who claimed that the two requirements — part of a bill known as H.B. 2 passed by the Texas legislature in 2013 — violated the 14th Amendment, which says that states cannot make laws that deprive any person of life, liberty, or property without due process of law.

Justice Anthony Kennedy — usually seen as the critical “swing” vote on abortion issues — joined with three of the court’s four liberal members (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) in the opinion. The fourth, Justice Ruth Bader Ginsburg, concurred in a separate opinion.

Burden on Access to Care

In its decision, the court focused in part on the number of abortion clinics that closed in the wake of the law’s passage, and the burden of care that the remaining clinics would have to bear. “Prior to the enactment of H. B. 2, there were more than 40 licensed abortion facilities in Texas, which ‘number dropped by almost half leading up to and in the wake of enforcement of the admitting-privileges requirement that went into effect in late-October 2013,’” the court noted, citing a previous district court decision in the case.

“If the surgical-center provision were allowed to take effect, the number of abortion facilities, after September 1, 2014, would be reduced further, so that ‘only seven facilities and a potential eighth will exist in Texas,’” the justices continued, again citing the district court decision. “The suggestion ‘that these seven or eight providers could meet the demand of the entire state stretches credulity.’”

The court also dismissed arguments that the ambulatory-surgery-clinic-type requirements would stop abortion providers like Kermit Gosnell of Philadelphia, who was convicted of first-degree murder and manslaughter in connection with running an unsafe and unsanitary abortion clinic at which many abortions were performed after 24 weeks’ gestation.

“Gosnell’s behavior was terribly wrong,” the court wrote. “But there is no reason to believe that an extra layer of regulation would have affected that behavior. Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.”

Effect on Other Cases

Supporters of today’s decision said they will be reviewing other abortion cases now being litigated to assess how those cases might be affected by Monday’s ruling.

“The court makes clear that under the Casey standard [enacted 24 years ago in the Planned Parenthood v. Casey case] that courts have to consider the burden the law imposes on abortion access together with the benefit [it] purports to advance,” Nancy Northup, JD, president and CEO of the Center for Reproductive Rights, in New York City, said on a conference call with reporters. “The courts are going to look at what those purposrted justifications are … and weigh those against the burdens that are imposed.”

Pro-abortion rights groups praised the decision. “We are thrilled that these dangerous provisions have been struck down,” Cecile Richards, president of Planned Parenthood Federation of America, in New York City, said in a statement. “This is a win for women. Every person must have the right to make their own personal decisions about abortion, and we will fight like hell to ensure they do.”

Amy Hagstrom Miller, founder, president, and CEO of Whole Woman’s Health, the plaintiff in Monday’s case, said on the conference call that the decision may put a stop to “copycat” state laws around abortion rights issues. “We are also going to see people noticing other laws passed such as waiting periods and forced ultrasounds. I am hopeful more people will take a stand and put a stop to this kind of regulation.”

Physician Groups Weigh In

The American Medical Association (AMA) applauded the decision in a statement from its president, Andrew Gurman, MD.

The decision “[strikes] down unsupported and unnecessary government regulation of medicine that impedes, rather than serves, public health objectives,” Gurman said. “The AMA opposes interference in the clinical examination room and calls on policymakers to leave determination of what constitutes medically necessary treatment where it belongs — in the hands of physicians and patients.”

The National Physicians Alliance, a doctors’ group here focused on “achieving high-quality, affordable healthcare for all,” called the decision “good news”. The alliance noted that it authored a “friend of the court” brief in the case which stated that “although we recognize government has an obligation to protect citizens, there is increasing infringement on the practice of medicine by legislation which not only restricts access to appropriate care, but is too often ideologically motivated and in direct opposition to evidence of safety and efficacy.”

The White House also weighed in. “I am pleased to see the Supreme Court protect women’s rights and health today,” President Obama said in a statement. “As the Court affirmed today, these restrictions harm women’s health and place an unconstitutional obstacle in the path of a woman’s reproductive freedom … Women’s opportunities are expanded and our nation is stronger when all of our citizens have accessible, affordable health care.”

But others were disappointed. The American Association of Pro-Life Obstetricians & Gynecologists said in a statement that it was “dismayed that the Supreme Court justices have removed the ability of the State of Texas to regulate the practice of medicine within Texas … The common-sense regulations passed into law by the state of Texas were less restrictive than surgicenter regulations in place across the country for other comparable surgeries. It is dismaying that abortion has become a procedure above the law, and that Texans, both men and women, are forbidden to protect their own.”

“Today’s ruling is a step backward for women’s health,” Roger Severino, JD, and Elizabeth Slattery, JD, of the Heritage Foundation, a right-leaning think tank here, said in a statement. “The Court was wrong to strike down a reasonable law that protected women from unsafe abortion facilities like Kermit Gosnell’s notorious and deadly ‘house of horrors’ clinic. This decision will allow abortion extremists to keep open disreputable abortion clinics that fail to meet basic safety and cleanliness standards followed by every other facility that performs invasive surgeries.”

This story, originally published on June 27th at 13:24 has been updated on June 28th at 12:41.

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